Wandell v. Wandell
| Decision Date | 28 January 1937 |
| Docket Number | No. 619.,619. |
| Citation | 189 A. 44 |
| Parties | WANDELL v. WANDELL. |
| Court | Rhode Island Supreme Court |
Appeal from Superior Court, Providence and Bristol Counties; Hugh B. Baker, Presiding Justice.
Action by Annie Wandell against Jame Wandell. From a decree discharging a writ of ne exeat, Annie Wandell appeals.
Appeal dismissed, decree affirmed, and cause remanded, with directions.
Waldman & Waldman, of Providence, for petitioner.
Hinckley, Allen, Tillinghast & Wheeler and S. Everett Wilkins, Jr., all of Providence, for surety.
This is an appeal from a decree of the superior court discharging a writ of ne exeat against the respondent. Said decree was entered on the motion of one of the sureties on the respondent's bond. This motion was filed by the surety after the respondent had been committed to jail for failure to perform the final decree in which the respondent was ordered to pay alimony in the sum of $5 a week to the petitioner for the support of a minor child. The petitioner contends that the surety is not a proper party to move for the discharge of the writ unless he can show that the writ has fulfilled its purpose. She insists that the writ has not fulfilled its purpose in this instance.
On March 2, 1934, the respondent was adjudged in contempt for failure to comply with the decree of the superior court ordering him to pay the alimony for the support of his child, and a body attachment was issued against him. He was arrested and committed to jail. On March 17, 1934, he purged himself of contempt and, upon written motion of the petitioner in the divorce action, the court issued a writ of ne exeat requiring the respondent to give bail with surety in the sum of $500. Bail was given by the respondent with Raymond Janusayewski and Jakubas Russas as sureties. On September 28, 1934, respondent was again adjudged in contempt and, not having purged himself, was committed to jail on December 4, 1934. While the respondent was in custody pursuant to the decree of the court adjudging him in contempt, the surety, Janusayewski, moved in the superior court for the discharge of the writ of ne exeat, and the motion was granted. Later, on December 8, 1934, respondent again purged himself from contempt and was released from custody by order of the superior court.
The office of the writ of ne exeat is fundamentally the keeping of the respondent within the jurisdiction of the court so that he may be within reach of the order of the court. No excursion into the history of the writ is necessary to convince us that, on the facts above set out, the writ had thoroughly fulfilled its office when the respondent was apprehended and committed to jail on December 4, 1934. The respondent was then within the jurisdiction of the court and could only be released on such conditions as the court deemed necessary. Very properly the surety under these circumstances applied to the court to be released from his obligation as bail for the respondent and quite properly also the justice of the superior court granted the motion because the respondent was then within the jurisdiction of the court and amenable to its orders. If the petitioner deemed it necessary, she could have moved for another writ of ne exeat as a condition precedent to the release of the respondent on December 8, 1934.
The petitioner's counsel admits that the mandate of the writ specifically commands the sheriff only to cause the respondent to come before him and give sufficient security that he will not go without the state without leave of court, yet he contends that the writ has not fulfilled its purpose in the instant case because the respondent had not made payments of alimony as ordered by the court. The office of the writ of ne exeat is not to enforce such payments. That object is attained by the arrest of the respondent on a body attachment and his committal to jail until he evinces a willingness to comply with the order of the court. The office of the ne exeat is to assure the presence of the respondent within the jurisdiction of the court when and if it becomes necessary to proceed against the respondent in this manner. It did become necessary to do that very thing on December 4 1934, and the respondent was found in the state, duly arrested and committed to jail. Under such circumstances the superior court had the power to discharge the writ of ne exeat at the instance of the surety on the bail at least while the respondent continued in custody.
The decision of the trial justice in the instant case is not inconsistent with the principles of the law governing this writ as discussed in the Rhode Island cases cited on the petitioner's brief. Hazard v. Durant, 11 R.I. 195; Griswold, Petitioner, 13 R.I. 125; Robinson v. Robinson, 21 R.I. 81, 41 A. 1009; Jastram v. McAuslan, 29 R.I. 471, 72 A. 531; Levine v. Levine, 44 R.I. 61, 115 A. 243. In none of these cases was this precise question raised, but in considering the scope and purpose of the writ there is no expression of the court which would lead to a conclusion in the instant case contrary to the one we now hold.
Whatever may have been the reason that gave rise to the writ of ne exeat in England, we do not feel those reasons are of any consequence here. When this writ is invoked in a proceeding of the character of the one now before us, the nature and effect of the writ will be viewed in the light of present-day conditions.
The appeal is denied and dismissed, the decree appealed from is affirmed, and the cause is remanded to the superior court for further proceedings.
BAKER, J., did not sit.
It seems to me that for a clear understanding of the question involved in this case a fuller statement of the history of the case is desirable. It was begun August 11, 1925, by a petition filed by a wife against her husband for divorce, custody of a minor child and support of wife and child. It appears that the citation could not be served on the husband within the state and that service was made outside. On September 24, 1925, no appearance having been entered by the respondent, the petition was heard and a decision was given for the petitioner for divorce and custody of the child. On June 25, 1926, a final decree of divorce was entered awarding to the petitioner the custody of the child.
On November 29, 1933, a petition was filed by the wife that the decree be modified so that the respondent would be ordered to pay to her alimony and also a sum certain weekly for the support of their minor child. This stated that the respondent was" then within the jurisdiction of the court. A citation was issued and served on the respondent personally December 2, 1933. On December 8, 1933, the petition was heard and granted and a decree was entered, which ordered the respondent to pay the petitioner $5 per week as alimony for the support of the petitioner and the child.
On February 20, 1934, the petitioner filed a motion that the respondent be adjudged in contempt of court, because he had only paid her $20, being in arrears for $35. On March 2, 1934, a decree was entered adjudging the respondent in contempt. A body attachment was issued and on March 14, 1934, a decree was entered that he be committed to jail and might purge himself of contempt by complying with the decree of December 8, 1933, and payment of all costs. On March 17, 1934, he purged himself of contempt, evidently by paying the alimony in arrears and all costs, and was released from custody under the body attachment.
On the same day the petitioner filed a petition for a writ of ne exeat against the respondent and an order was entered that the writ issue and bail was fixed at $500. On the same day, also, the writ was issued accordingly, the respondent was arrested under it, Raymond Janusayewski and Jakubas Russas signed it as sureties for him and he was then released. This writ recited the representations of the petitioner, including one that, if the respondent were not prevented from leaving the state, the petitioner would be unable to enforce compliance with the decree for payment of alimony. It commanded the sheriffs to cause the respondent "to give sufficient bail or security in the sum of $500.00 that he, said Jame Wandell, will not go, or attempt to go into parts beyond this State, without the leave of our said Court."
On June 5, 1934, the petitioner filed a motion that the respondent be adjudged in contempt because he had paid nothing under the decree for alimony since March 24, 1934, so that $50 was overdue up to May 26, 1934. A citation was issued, returnable June 8, 1934, but was never returned; and no further proceedings on the motion are shown. On September 15, 1934, the petitioner filed a third motion that the respondent be adjudged in contempt for nonpayment of alimony, the amount then in arreas being stated as $90. On September 28 a decree was entered, finding him to be in contempt for nonpayment of $95 in arrears and providing that he might purge himself by paying the petitioner $50 on or before October 12, 1934, and thereafter $2 per week on the balance in arrears in addition to the regular payment of $5 per week.
On November 30, 1934, the petitioner filed a petition asking for the issuance of a body attachment against the respondent for contempt of court because he had paid only $45 on alimony since the decree of September 28, whereas under that decree he should have paid $99. A body attachment was issued and the respondent was brought before the court on December 3, 1934. On December 4, as of December 3, a decree was entered that he be committed to jail until further order of the court, but might purge himself of contempt by paying $100, the amount of alimony in arrears, and paying $5 for costs.
On December 6, 1934, according to the file mark, a typewritten petition was filed by Janusayewski, one of the sureties as bail for the respondent on the ne exeat writ, reciting that the respondent was in jail for...
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